Social contract: individual freedom is exchanged for living in a society based on law

‘For by art is created that great Leviathan called a Commonwealth, or State (in Latin, Civitas), which is but an artificial man, though of greater stature and strength than the natural, for whose protection and defence it was intended’
~Thomas Hobbes~
~Leviathan~

Introduction

The Social Contract Theory has been espoused by many writers from Plato in Crito to modern day writers such as Ayn Rand and John Rawls. However, for English writers Thomas Hobbes undoubtedly holds a certain status as the paradigm of a social contractarian, his work in Leviathan was described as the ‘greatest, perhaps the sole, masterpiece of political philosophy in the English language’ . Another leading writer was Jean Jacques Rousseau, his fame owing a lot to do with the French Revolution and subsequent events, and it is on these two writers that this work will focus.

The Social Contract Theory is of importance to all legal scholars because it is a theoretical discourse which attempts to legitimise the coercive and invasive nature of law on naturally free persons. Undoubtedly there are a number of competing concerns that intersect with the Social Contract Theory, such as liberalism, which we must be aware also place constraints on this rationale. One of the most appealing attributes of the Social Contract Theory is its ability to delineate the natural from the artificial, the ability to comprehend society as an artificial construction created in order to restrain and improve upon the natural state of things. In that sense Law is much like Technological Engineering i.e. the improvement of the pre-existing by use of the artificial.

One intersecting concern is the use of the paradigm of a contract between the governed and the governing, as we shall see when we discuss the respective views of Hobbes and Rousseau, which may have a similar premise in the abstract but mask a more fundamental difference in the approach of the writers, and begs the question of whether the social contract is a ‘simple exchange’ or whether it masks something more complex. The Social Contract Theory is what is called a meta-narrative by post-modernist writers in that it attempts to give an overarching explanation of law’s legitimacy which makes a number of assumptions about human nature, the structure that law ought to take and what the social contract agrees upon. It is these criteria which we will be evaluating in the work.

Thomas Hobbes

Thomas Hobbes published his magnus opus Leviathan in 1651 and over three centuries later the work is still the subject of academic debate and controversy. Hobbes was largely influenced by a number of his contemporaries such as Galileo and Francis Bacon and his writings distinctly exhibit a post-enlightenment thought which moves away from basing law on principles of natural justice . I will outline Hobbes’ thoughts on the social contract theory and present a number of its most classical criticisms and flaws; we will then move onto compare this to the exchange contemplated by Rousseau.

Hobbes’ theory of the social contract has a number of key facets which are very important to fully understand the structure of the social contract. He starts with the prima facie position that all people are equal, or in other words they all possess an inherent ‘individual freedom’, however without any ‘power able to overawe them all’ then:

‘it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man’

In this state of ‘war’ or ‘nature’ there is no such thing as justice or injustice because only a ‘common power’ can issue laws and furthermore without laws then there is no justice. In this state of nature men are naturally free, they have an inherent liberty , in other words a power to ‘do what he would’ without any ‘external impediments’ . Thus in Chapter 14 of Leviathan Hobbes sets out clearly how the social contract becomes formed, Hobbes stipulates that two ‘natural’ principles flow from the state of nature that ‘as long as this natural right of every man to every thing endureth, there can be no security to any man…of living out the time which nature ordinarily alloweth men to live’ thus men ought to want peace, the only way that this can be managed is by a mutual agreement from all people not to use their right to everything. If only some people were to relinquish their rights then it would be unjust because it would leave them open to being preyed upon. He summed this up by using the proverb of Lampridius ‘quod tibi fieri non vis, alteri ne feceris’ .

The only person who didn’t relinquish their universal claim to all things was the sovereign who became the arbiter of legitimate force in society. Evers has made the point that in a Hobbessian social contract the paradigm was less of a contract between people and the sovereign and more of the sovereign as a beneficiary of the mutual agreement of people not to exercise their full rights . Thus individual freedom is not directly swapped for security; it is not a bargain but more of a mutual covenant because what is fundamental for Hobbes is the acquiescence of a people to an identifiable sovereign. There is no reciprocity between sovereign and people.

In Hobbes’ account the fundamental factor is the fear of people in keeping their obligations, he recognises that their maybe those who through virtuousness keep their word but he explains that fear is the dominant motivation. Furthermore the existence of fear is explained not to vitiate the consent of the people in general. Hobbes unlike many moral philosophers doesn’t assign a particular dignity to the consent or will of the individual, the fact that the will of the people is obtained due to fear of death is merely consistent with the fundamental human nature which tends towards self-preservation.

When we consider Rousseau we will seem some marked differences between the writers but it is uninformative to leave Hobbes at this point. His views on the social contract exhibit numerous paradoxes when we consider the elements that make up his theory. Hobbesian Contractarian theory makes a number of assumptions about human knowledge, the state of nature, rights of people to rebel, conflict and many other things that other writers such as John Locke and Rousseau would disagree and these factors need to be realised. Thus Hobbes didn’t believe people had a right to rebel once they had ceded their rights to the sovereign . He outlines this argument in Ch.18 where he states the options are clear; if somebody has a problem with a particular act then he cannot then revoke his consent because ‘he must either submit to their decrees or be left in the condition of war he was in before; wherein he might without injustice be destroyed by any man whatsoever’ .

The choice then for a person in the Hobbesian contract is total submission to the sovereign or the state of nature. He does not like John Locke or Rousseau impute that even in the state of nature humans have an inherent dignity or worth which is to be protected. The corollary of this point is that the sovereign is supreme, Hobbes is known as an absolutist, he doesn’t advocate a type of government but he does say that it must be supreme. It is clear that Hobbes thought any impingement on this supremacy was the slippery slope back to the state of nature . This is on an objective footing but there is a normative proposition in Hobbes’ work that states a sovereign ought not to implement a ‘restraint of natural liberty, but what is necessary in the good of the commonwealth’ . In many ways Hobbes’ emphasis is misunderstood and whilst his propositions may seem prima facie anti-liberal they merely emphasise that there are no transcendent rights, those rights may be silenced in certain situations. We see this in all human rights dialogues across the modern world, for example the right to a fair trial under Article 6 of the European Convention of Human Rights causes numerous problems for the detention of terror suspects.

However, whilst there is an undoubted liberal sentiment in some of Thomas Hobbes writings this doesn’t square with his more abstract theory which is the paradigm of a simple exchange of individual freedom for living in society, that is an unconditional surrender to the sovereign of those freedoms which every person possesses in the state of nature.

Rousseau

A century after Hobbes had published Leviathan, the French moral philosopher Jean Jacques Rousseau published ‘The Social Contract’ in 1762. He dedicated a whole book to a subject which Hobbes had written a few chapters on and thus many of his ideas are more explicit where Hobbes was implicit. Rousseau has a similar importance to Hobbes and has been described as ‘the lynch-pin of the political consciousness of the entire modern period’ ; his obvious influence on the leading lights of the French revolution also has given him a place in history.

The main issue for Rousseau was, similarly to Hobbes, to understand the chains of society and how they were made legitimate considering that all people have a basic integrity or free will which ought not to be contravened. Thus, as we shall see below the aim of the social contract for Rousseau was distinct from Hobbes:

‘Rousseau wants to establish a relationship between citizens that will provide each with adequate protection backed by the community while preserving the free will and liberty of each’

Rousseau summed up his overarching concept of the Social Contract by saying ‘Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole’ . The incentive for people to enter the Social Contract was substantively similar to Hobbes but his basic premise wasn’t. Rousseau builds up his premise logically and in an order through Book I of the Social Contract, he starts with a basic liberal premise that all men are born free, he disagrees with the Ancient Greek philosophers that the dispositions of ruling and serving are inherent with birth. He thus validates his claim that all men are born free by using the example that if only one person were alive that they would be the ruler of the world.

He strongly disagrees with Hobbes that violence or strength is sufficient to create rights or laws. In society he stipulates no one person is strong enough to perpetuate obedience without transforming that strength into a right and the obedience a general duty, however strength is never sufficient to create either rights or a duty. Force cannot be a right because it has no abstract existence and would be at the whim of subjective applications of individual strength thus ‘As soon as it is possible to disobey with impunity, disobedience is legitimate’ , he also says that force cannot create duty because to say this would be to imply that if somebody were to attempt a robbery, given you could not stop him by force, then you would be under a duty to give him whatever he desired. He also rejects that the subjugation of a people to a ruler is a form of slavery because no man can give himself voluntarily into slavery because to do so would be insane furthermore for the reasons given about force they cannot be forced into slavery by a conqueror. Rousseau, distinctly to Hobbes, seems to be saying that every person, in their natural state, doesn’t have a right to everything because certain things are naturally inviolable, so he would disagree with Hobbes that anybody ever has the right to take the life of another person .

The Social Contract is thus a way of establishing a society of people, however they may be governed, which resembles a corporate body or as Rousseau calls it the ‘body politic’. Every person in a society completely alienates their individual rights to the community however, unlike Hobbes; the sovereign is not a beneficiary who retains the whole ambit of rights. The fundamental aspect of this social contract which is distinct from Hobbes is that:

‘each man, in giving himself to all, gives himself to nobody; and as there is no associate over whom he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses, and an increase of force for the preservation of what he has’

In Rousseau’s schema then that community may for whatever reason decide to subjugate itself to a particular ruler but fundamentally before a ‘people’ may be formed there must be a social contract between the individuals that make up that people. Thus for Rousseau it is not correct to imagine the social contract as a true contract of exchange between the ruler and ruled where one exchanges freedom for security.

It is widely accepted that Rousseau’s normative version of the Social Contract was a response to his perceived subjective version which was the perpetuation of class divides through those in societies with property and power forming together to create a government . Thus the Social Contract as envisioned by Rousseau was hardly practicable because it required an extremely strong form of communitarian democracy whereby all people came together regularly to make decisions. Thus a state was envisioned as being small in geographic terms perhaps limited to a province or a large city. An individual thus had power over all the rest as a member of the body politic and was subject as an individual to the body politic. Whilst like Hobbes the sovereign was a supreme being, the state was made up of all the individuals and those individuals gave up their rights on the guarantee of involvement in the governing of their lives not simply for security of body and goods.

Critiques and Comparisons of Hobbes & Rousseau

There a number of problems with both accounts of the social contract theory and the comparisons between the approach of Rousseau and Hobbes are illuminating. In this section we will focus on the various flaws and the problems that specifically turn on the exchange that causes people to enter the social contract which is the subject matter of this work.

There are a number of respective problems with the accounts of the social contract. Hobbes’ problem is that there is no clear delineation between the despot who conquers a society and subjugates the people by force and a democratically formed representative form of government. The commands of both sovereign bodies are legitimate and rightly deserve the force of law. Hobbes places particular reliance on ‘fear’ in perpetuating his theory. Furthermore, the moral concept of an individual’s will is not very palatable for a modern world. Evers makes the point that Hobbes conception of will is understood not as a morally relevant faculty but as part of the human mechanism which is controlled by person’s appetites . Thus whether a person ‘wills’ to enter a social contract because of fear or some more virtuous impulse matters not in a moral sense for Hobbes. The will also can take any form such as acquiescence, silences and forbearances. The individual in a Hobbesian sense has very little choice and Rousseau’s own criticism of Hobbes is valid in this sense; Hobbes’ logic is analogous to that of the Emperor Caligula in that ‘some are born for slavery, and others for dominion’ . These notions are certainly not palatable in modern day theory which, stemming from John Locke, views the will as a morally significant faculty of the human being.

Rousseau doesn’t fall foul of these problems and clearly sets himself apart from Hobbes in that his approach does, as we noted, recognise fundamental dignities and respects an individuals will as one of the most important factors in formation of the social contract. However, he too suffers from problems, such as having to account for the punitive sanctions of certain laws on certain members of society because in effect by punishing an individual the sovereign in Rousseau’s schema is attacking itself . Evers suggests that Rousseau’s solution dissolves into a society which looks much like the one envisioned by Hobbes . He envisions the body politic devolving power to subordinate magistrates and other executive officers who will carry out the punishment on individuals and ask the person either to submit to the punishment or revert to a state of nature.

However, Rousseau’s state of nature is not as clearly defined as Hobbes’; it is unclear what intrinsic rights an individual qua individual has in that state. Rousseau suggests that the punishment for breach of the social contract would be sufficient such that breach would give the right of the body politic to punish that person in any case. This opens up a whole other line of concerns such as who decides when the contract is broken and does this mean no-one can ever withdraw from the contract? Or perhaps once they have violated the laws then the consent is irrevocable? Rousseau leaves these issues unresolved.

The further problem is that the executive will have power over the members of the legislature as individuals. Rousseau recognised that day-to-day governance had to be carried out by a few; it is a sociological impossibility to have the majority of people in society governing that society and thus the few will inevitably control the many. This creates oligarchic tendencies which may operate to suppress the democratic elements of society. There is also a similar idea of tacit consent to the commands of those people who govern a consent as was advocated by Hobbes. This can be contrasted to Locke who required a continual majority of people to have consent in any particular society .

This is part of a general flaw in Rousseau’s work in that despite his stated aim he fails to ‘explain how strong communities and authentic individuals can co-exist’ . There have been numerous academics who suggest that it is of moral relevance that one defines ones identity as an individual. It is argued that community based theories of society are a model of ‘the most terrible forms of homogenizing tyranny’ and there is intensive debate over whether authenticity or individuality can be made compatible with communitarian models. This is not the place to go into depth about the debates over what makes up one’s self but suffice to say that it is argued that Rousseau values community to the detriment of individuality.

What has to be recalled is that for Hobbes and Rousseau the contractarian ideal was far from a novel concept, the paradigm of a contract between the ruled and ruler has been around since the time of the Romans and great philosophical writers of the time such as Cicero had written of the social contract . The paradigm of a contract, of oath and promise, was dominant in the feudal relationships of the time, the operation of city principalities and induction into certain guilds . It had been a paradigm for writers with incredibly divergent opinions, thus there was arguments by certain writers that the contractual paradigm was influenced by the growth of the bourgeoisie and their mercantile relationships . The distinctive approaches of Hobbes and Rousseau to what is fundamentally a very similar arrangement was therefore hardly novel.

The Social Contract approaches of Rousseau and Hobbes also show a distinctive but also alternately flawed approach to their conception of natural rights. In order to exchange freedom for security then people must have at the very least certain natural rights that they could exchange for their participation in society. We saw in Hobbes that every human has one natural right and that is self-preservation. Lund has argued that it is difficult to delineate between this natural right of human beings and the natural liberty of animals. The difficulty is that the liberty he gives men makes rights worthless because if men have rights to everything then ‘the effects of this right are the same, almost, as if there had been no right at all’ . The difficulty with Hobbes is that it doesn’t account for the natural rights that a man has before he enters the social contract because in the end the rights seem to be a semantic sleight of hand. Rousseau doesn’t make his conception much clearer either because whilst undoubtedly the will of the parties must exits and be a morally relevant faculty and there are hints at fundamental or natural rights but he never makes it explicit in Social Contract. In his other writings it is difficult to tell what his opinions because as we shall see they are less aspirational and more premised on a factual account of the formation of society.

The natural rights approach of both is ambiguous to say the least, but there is the unifying concept that runs through Hobbes, Locke and Rousseau that ‘the centrality of self preservation’ is ‘the basis for politics and the denial of man’s political nature’ . In a state of nature self-preservation would have been a ‘natural’ concern and thus it is the one that has compelled formation of society. The important distinction between Hobbes and Rousseau is that Rousseau’s account is aspirational whereas Hobbes is descriptive. Rousseau was attempting to set an abstract standard to measure societies against whereas Hobbes was interesting in charting the transition from a state of nature and society. Rousseau did an in depth empirical study into the background and reality of what humans must have been like in the state of nature and came to the conclusion that both Locke and Hobbes were probably correct about the first impulses that caused us to form society. Thus from Rousseau’s point of view it may be valid to argue that he saw societies as being formed not as an exchange of individual freedom for security as such but a sociological process driven by self-preservation. Hobbes felt that this model was satisfactory and to be the touchstone of a society, however Rousseau perhaps saw his as less of a reality but as a model. The point has been made that this creates the interesting perspective that modern man could return to the state of nature, not in an empirical sense but in a theoretical sense ‘to the human condition outside mutually obliging covenants’ . The conceptual difficulty of grasping what life in modern society outside mutual covenants could possibly be like does create significant difficulty for this approach . However, it would seem that for Hobbes there is no opting out and this is reinforced when we consider the obligation not to rebel in a Hobbesian social contract.

Another interesting contrast between Hobbes and Rousseau is their apparent approach to democracy . Rousseau saw democracy as fundamental to the ideal social contract; it was only with a guarantee of some kind of participation in your ruling that one delineates slavery and society. However, Hobbes is distinctly antithetical to democracy as shown by a variety of his views. Hobbes saw democracy as what would naturally occur as men came out of the state of nature but that inevitably due to the instability of democracy they would choose either aristocracy or monarchy as more stable forms of government

Conclusion

The writings of Thomas Hobbes and Jean-Jacques Rousseau are very different in design, form of government and treatment of individuality. However, the question for this work was to evaluate the statement at the beginning of this work that the social contract is an exchange of individual freedom for security. Hobbes and Rousseau both agreed on this premise but diverged over whether this legitimised legal systems and forms of government. Rousseau certainly seems to imply that democracy is fundamental to this surrender of rights and is the thing that legitimates the use of executive power against its individuals. Hobbes is antithetical to democracy because he is less concerned with the establishment of a normative ideal form of society than describing reality. Thus perhaps Rousseau is an extension of Hobbesian principles, undoubtedly writers such as Evers point to the fact that the treatment of executive power by Rousseau exhibits distinct facets of a Hobbesian social contract. The interpretations of Hobbes and Rousseau are divergent and the labels as liberals, absolutists, communists and many other seemingly conflicting doctrines continue to be appended to these great moral philosophers.

Research Methodology

1. Planning & Researching the Essay

I started the research for this essay by gathering numerous online sources which would help direct me to the paper sources in the form of Articles and Books. This started by using the Scholarly Papers Search function on Google and the trail just flowed from there and included using certain websites which specialise in academic articles. I quickly realised that articles on Hobbes and Rousseau were covering such massive theoretical areas that I had to refine my searches and this was further compounded by the general problem I had with understanding the direction of the essay, as I outline below. I tried to focus my searches on any academic articles that critiqued general Social Contract Theory and the views of Hobbes and Rousseau on the state of nature and the actual exchange that occurred in going from the state of nature to the social contract situation. This in itself covers a wide gamut including articles on democracy and liberalism in their respective writings. However, interestingly there are very few direct compare and contrast articles as between Rousseau and Hobbes.

After I had completed my online research I had a number of Articles of which only a few where relevant enough to actually go into the final draft of this work. It had become apparent from doing electronic searches of the library database that there were seemingly no comparative works as between Hobbes and Rousseau in book form. I was aware that there were a couple of books which may have been useful but I was unable to obtain them either from the University library or the local libraries, these were; The social contract from Hobbes to Rawls by Boucher and Kelly and Will and Political Legitimacy : A critical exposition of social contract theory in Hobbes, Locke, Rousseau, Kant, and Hegel by Patrick Riley. These being unavailable to myself I hired both the original sources i.e. Leviathan and Social Contract Theory and was contented that given the size of the essay that use of original sources with a number of critical academic articles would be sufficient to answer the question set.

Once I had finished gathering all my sources I planned the structure of the work. It seemed apparent from the reading that I had done that Hobbes & Rousseau’s work showed a number of differences that was ripe for a compare and contrast work. I structured it so that the essay broke down to about 1000 – 1500 words on each writer’s original theories and about 1500 – 2000 words comparing and critiquing the two theories. I started with Hobbes simply because he was the earliest historically speaking and I had no other criteria to go on.

2. Issues and Difficulties with the Work

I found a number of difficulties with this piece of work. The first major problem in itself was the question. I found that the question lacked any real direction because it gave the classical definition of social contract theory and then it was simply a ‘Discuss considering the ideas of both Hobbes and Rousseau’. It was difficult to walk a line between simply narrating the ideas which both writers had espoused and forming some kind of critical basis. I assumed that it was largely a compare and contrast work however there was only so much material in that angle when you restrict your view to the exchange between individuals and the state. I thus felt whilst I had a good plan, set out above, that the essay meanders a bit because it didn’t have a clear direction. It highlighted the importance in doing my own reflective work of setting clear questions.

I didn’t have any major problems in understanding the texts although some were very abstract such as the work on individual authenticity. The issue I struggled with the most was the vagueness in Hobbes’ work over the issue of Natural Rights. It was highly confusing to distinguish between what he viewed as Natural Liberty and Natural Rights, not to mention the occasional slip in his work which implied a more expansive view of Natural Rights. The issue was of minor importance to this work in any case and thus I attempted to paraphrase it when I discussed the issue however I’m not sure that I fully grasped all the complexities.

I think one of the other most difficult issues, which seem to be generic when writing about theory, is the open texture of all the philosophical ideas. I mentioned this in my conclusion because it is so difficult to cover all the issues in an essay of this size. Undoubtedly the two writers in question, Hobbes and Rousseau are particularly susceptible to this and seem to have given rise to so many speculations about the conclusions one can take from their work. In fact, one can probably find a basis for every type of political tendency in these books.

I did however enjoy writing the essay and it really made me think about the issue of law’s legitimacy which it is all too easy to overlook in modern society with the multiple layers of governance and sources of executive power. The issues that both Hobbes and Rousseau were dealing with were foundational and having written this essay has made me want to go onto to do further research on the issue.